(concurring in part and dissenting in part).
I concur as to the dismissal of the appeal from the order denying reargument, but otherwise dissent and vote to grant the appellants’ motion to amend the caption of the action by deleting their names as party defendants.
In my view, the factual context of this case and the mandate of the Court of Appeals in Dole v Dow Chem. Co. (30 NY2d 143) preclude any possibility of a right to full common-law indemnification in favor of the defendant hospital against the defendant doctors. Accordingly, the motion by the doctors to amend the caption of the action by deleting their names as party defendants should have been granted.
The instant action for wrongful death was brought against the defendant hospital and three doctors. The deceased was admitted to the hospital on November 27, 1974 to deliver a child. Defendants Rossi and Istwany were her obstetricians and she was also treated by defendant Trimarchi, an anaesthe*398siologist, while in the hospital. The complaint alleges, inter alia, that the defendant doctors were all employees of the hospital and were negligent in treating the deceased. The bill of particulars alleges, in pertinent part, that all of the individual defendants were negligent in failing to diagnose that the decedent had an infection that should have been treated promptly.
The answers consist of general denials and affirmative defenses of contributory negligence. In addition, the hospital interposed a cross claim against the doctors alleging that if it is found negligent, it will be entitled to indemnification in whole or in part by the doctors for such portion of the damages as was caused by their negligence.
Thereafter, the doctors settled the wrongful death cause of action against them for $115,000 and this settlement was approved by an order of the Supreme Court, Westchester County, dated June 13, 1977. A stipulation discontinuing the action as to the individual defendants was signed by the attorneys for plaintiff and the individual defendants on June 15, 1977.
Thereafter, the hospital moved for an order requiring the released doctors to appear for an examination before trial. The motion was granted by order dated October 4, 1977 whereby the "co-defendant doctors” were directed to appear for examinations before trial at the conclusion of the examination of the hospital and the plaintiff.
The individual doctors then moved, by notice of motion dated December 7, 1977 for an order, pursuant to CPLR 305 (subd [c]), amending the caption of the action so as to delete the individual doctors as party defendants.
In support of the motion it was alleged that pursuant to the stipulation of discontinuance, the individual doctors were no longer party defendants to the lawsuit and the prior order of October 4, 1977 was void for lack of in personam jurisdiction. The doctors argued that after amendment of the action, they could be deposed as nonparty witnesses pursuant to CPLR 3106 (subd [b]).
In opposition to the motion, the attorneys for the hospital alleged that the hospital in its cross claim was seeking indemnification against the doctors and that the doctors’ status as parties with respect to that cross claim was unaffected by the settlement between the plaintiff and the doctors and the provisions of section 15-108 of the General Obligations Law.
*399Special Term denied the motion holding that "[w]hile it is true that plaintiffs action against movants has been settled and discontinued, nevertheless, defendant St. Agnes Hospital still has a cross claim against movants which is still viable”.
The doctors then moved for reargument alleging that after settling the case with the plaintiff they were not required to participate as party defendants in the plaintiffs action against the remaining tort-feasors.
In opposition to the motion to reargue, the hospital alleged that the settlement between the doctors and the plaintiff only eliminated the hospital’s right to contribution from the doctors (see General Obligations Law, § 15-108), but did not affect the hospital’s cause of action for common-law indemnification from the doctors. However, at the same time the hospital admitted that "the co-defendant physicians were independent contractors”.
In denying the doctors’ motion to reargue, Special Term held: "The Court is still of the view that defendant St. Agnes Hospital’s cross claim against movants (three physicians) for full indemnification is still viable. In this case, the defendant hospital may be entitled to full indemnity rather than contribution from these physicians since plaintiff alleges in his complaint that these three physicians were employees of the hospital and were acting within the scope of their employment when they allegedly committed acts of malpractice. It may well be that the liability of the hospital, if any, will be vicarious in nature and based upon the theory of respondent [sic] superior and that, contrary to the contention of the physicians’ attorney in his reply affirmation and brief, there may be developed at the trial a basis for indemnification”.
Since Special Term premised its decision on the supposition that the physicians were employees of the hospital and that the hospital’s liability might well be vicarious in nature (despite the hospital’s admission in its affidavit in opposition to the motion to reargue that the physicians were independent contractors), a notice to admit was served on the attorneys for the hospital on March 15, 1978. In its answer to the notice to admit, the hospital clearly acknowledged that all three physicians were attending physicians and independent contractors and not employees of the hospital.
Subdivision (a) of section 15-108 of the General Obligations Law provides that when a release is given to one of two or more persons claimed to be liable in tort for the same injury *400the other tort-feasors are not released from liability unless the terms of the release so provide, but the claim of the plaintiff against the other tort-feasors is reduced by the amount stated in the release, or the amount actually paid for the release, or in the amount of the released tort-feasor’s equitable share of the damages under CPLR article 14 (Contribution) "whichever is the greatest”. The released tort-feasor is thereby relieved from liability to any other person for contribution under article 14 (General Obligations Law, § 15-108, subd [b]) and by the same token, he is not entitled to obtain contribution from any other person (General Obligations Law, § 15-108, subd [c]).
It must be noted that section 15-108 is applicable to all those who possess a right of contribution under CPLR article 14. In contribution, the liability is shared among wrongdoers who are in pari delicto. The statute has no bearing on the traditional common-law right of indemnity, e.g., the right of an employer who has been held vicariously liable for the negligence of his employee to be completely indemnified by the employee. In the latter situation, there is a shifting of the entire loss from one defendant to another.
In discussing the effects of this statute on tort-feasors, the court in Mielcarek v Knights (50 AD2d 122, 127) stated that a "valid concern may involve the nonsettling defendants’ lack of opportunity to cross-examine the settling tort-feasor”. In response to this problem, the court in Mielcarek (p 127) stated that "[t]his problem may be alleviated by subpoenaing the settling tort-feasor as a witness at trial or by using his testimony obtained during discovery procedures”. Clearly, the court, in referring to "testimony obtained during discovery procedures”, was referring to procedures completed before settlement. After settlement, the settling tort-feasor would have to be deposed as a witness, just as he could only be subpoenaed as a witness to testify at the trial.
Accordingly, if the pleadings here merely alleged negligence on the part of tort-feasors who could only be held liable in pari delicto, as in Mielcarek, then the motion to amend the caption so as to delete the settling tort-feasors would clearly be meritorious, and the hospital so concedes.
However, the hospital contends that there is a crucial substantive distinction between the case at bar and Mielcarek. According to the hospital, the complaint herein alleges that the individual doctors were employees of the hospital and were acting within the scope of their employment when they
*401allegedly committed acts of malpractice. Therefore, the hospital argues that the complaint, read in its broadest form, clearly incorporates a cause of action under the doctrine of respondeat superior. It is possible, argues the hospital, that facts could be offered and evidence adduced, consistent with the pleadings, which could result in a jury question on this issue. A finding by the jury that the doctors were employees of the hospital and were acting within the scope of their employment when they allegedly committed acts of malpractice would lead to a finding of liability against the hospital based on the doctrine of respondeat superior. Under those circumstances, the hospital would have a cause of action in common-law indemnification against the individual doctors (see Bing v Thunig, 2 NY2d 656; Hollant v North Shore Hosp., 24 Misc 2d 892, 896, affd 17 AD2d 974). However, there is a fallacy in the hospital’s argument. Notwithstanding any finding by the jury with regard to plaintiff’s cause of action against the hospital, the fact remains that with regard to any possible third-party action between the hospital and the individual doctors, the former is bound by its admission in its affidavit in opposition to the motion to reargue and in its answer to the notice to admit that the individual doctors were independent contractors and not employees (see CPLR 3123, subd [b]). Accordingly, there is no longer any basis in this action for the hospital to be fully indemnified by the doctors based on an employer-employee relationship and the principle of respondeat superior. (Although a hospital may be held vicariously liable for the negligent acts of an independent contractor-physician, that principle is limited to the situation where the doctor holds himself out to the public in such a manner as to cause patients entering the hospital to assume that the doctor was acting on the hospital’s behalf, e.g., the director of a hospital emergency room [see Mduba v Benedictine Hosp., 52 AD2d 450, 453]. The facts in Mduba are clearly distinguishable from those at bar which involve two obstetricians hired by the plaintiff, as well as an anaesthesiologist.)
It should be noted that the notice to admit and the hospital’s response thereto are not properly part of the record on appeal, since they both were served subsequent to the orders appealed from. The established procedure in this situation would be to remit the case to Special Term so that it could evaluate the effect of the hospital’s admission in response to the notice to admit (see Crawford v Merrill Lynch, Pierce, *402Fenner & Smith, 35 NY2d 291, 299). However, in the case at bar, the hospital has not in any way disputed the existence or authenticity of its admission in response to the notice to admit. Nor has it contested the propriety of its inclusion in the record on appeal. Under these circumstances, and in view of the fact that the hospital’s response to the notice to admit merely reiterated an admission by the hospital to the same effect which was made earlier in the case (i.e., in its affidavit in opposition to the motion to reargue), it is readily apparent that to remit the case to Special Term would be inappropriate since it would only "prolong the appeal and accomplish little else” (Crawford v Merrill Lynch, Pierce, Fenner & Smith, supra, p 299).
Notwithstanding this admission and the ramifications thereof, the hospital contends that "when read in amplification of plaintiff’s Complaint it is clear that plaintiffs complaints of negligence and medical malpractice are, in reality, directed to the co-defendant physicians and not the hospital. Under these circumstances the defendant hospital would be at most passively negligent and would have a common-law implied right of indemnification over and against the co-defendant physicians”.
Specifically, the hospital contends in its brief that the plaintiff may be able to prove at trial that other employees of the hospital, i.e., nurses and attendants, followed the negligent direction of the defendant physicians. Under these circumstances, the hospital argues, it would be vicariously liable for the passive negligence of its nurses and attendants and it would have a right to indemnification (since the hospital stands in the shoes of its employees) against the doctors.
However, the reasoning advanced by the hospital is misplaced and totally inapplicable to the facts at bar by virtue of the Court of Appeals’ decision in Dole v Dow Chem. Co. (30 NY2d 143, supra). In Dole (pp 147-148) the Court of Appeals noted that the "theoretical bar at common law to any apportionment” among joint tort-feasors, "either by indemnity or by contribution” had been weakened by CPLR 1401 which allows one joint tort-feasor to seek contribution from another and by the "elusive” active-passive test concept which, as developed in New York, constituted "an abandonment of the rigorous common-law policy, since it allows full indemnity in favor of one found to be passively negligent against another found to be actively negligent”. The Court of Appeals abrogated the *403active-passive test and held that where a third party is responsible for part, but not all of the negligence complained of, the jury must make an apportionment of responsibility between the joint tort-feasors. However, "[n]othing in Dole abrogates the common-law right of indemnity if such a right existed prior to the Dole decision” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1404:2, p 382). As the Court of Appeals stated in Rogers v Dorchester Assoc. (32 NY2d 553, 566): "the apportionment rule applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only vicariously liable, as the employer of a negligent employee, the owner of a motor vehicle operated by a negligent driver, or, as here, the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it”.
There are only three possibilities in the hypothetical situation posed by the hospital, i.e., that nurses or attendants, as employees of the hospital, obediently followed the negligent direction of the doctors. If, under the facts of this case, the hospital completely surrendered control of these employees with the result that the employees became the special employees of the defendant physicians, then the hospital would not be liable at all for the employees’ acts. If on the other hand, these employees remained employees of the hospital, then they either acted reasonably in obediently following the negligent direction of the doctors, or they acted unreasonably, i.e., negligently, in so doing. If the employees acted reasonably, then again the hospital would not be liable to the plaintiff in the first instance and indemnification would obviously not lie. If the employees acted negligently, then the hospital would be liable to plaintiff for their negligent acts based on the doctrine of respondeat superior. However, notwithstanding the vicarious liability of the hospital based on the negligent acts of its employees, it would under those circumstances, standing in the shoes of its employees, be a joint tort-feasor with respect to the other named tort-feasors, i.e., the individual doctors. Accordingly, under those circumstances, the hospital would not have a right to full indemnification from the doctors but would only have the right to have its responsibility with respect to damages apportioned pursuant to Dole, and in this case, where the other tort-feasors have settled, to have the amount of damages it was required to pay *404determined pursuant to section 15-108 of the General Obligations Law. (Of course, the hospital would have a right of full indemnification against the employees.)
Accordingly, the doctors had "no place as [parties] in this lawsuit” (Mielcarek v Knights, 50 AD2d 122, 128, supra), once they settled with the plaintiff, and, therefore, their motion should have been granted.
Latham, J. P., and Damiani, J., concur with Titone, J.; Suozzi, J., concurs in the dismissal of the appeal from the order entered February 22, 1978, but otherwise dissents and votes to grant the appellants’ motion to amend the caption in the above-entitled action by deleting their names as parties defendant, with an opinion.
Appeal from an order of the Supreme Court, Westchester County, entered February 22, 1978, dismissed. No appeal lies from an order denying a motion to reargue. Order of the same court entered December 28, 1977, affirmed. The respondent is awarded one bill of $50 costs and disbursements to cover both appeals.